Citation Nr: 21077295 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-38 179 DATE: December 29, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent prior to October 9, 2015 for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 70 percent from October 9, 2015 to November 18, 2018 for PTSD is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2004 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which service connection was granted for depression and an initial 30 percent rating was assigned effective February 3, 2010, the date after service discharge. During the pendency of the appeal, in a June 2017 Decision Review Officer (DRO) rating decision, based on the findings of an October 2015 VA PTSD review examination, the rating for "PTSD (previously rated as depression, not otherwise specified (NOS))" was increased from 30 percent to 70 percent effective October 9, 2015, the date of the VA examination. It is noted that, although the October 2015 VA examiner diagnosed the Veteran with PTSD, he also determined that there was no longer sufficient evidence to assign an independent diagnosis of depressive disorder NOS, as those symptoms were better accounted for by a diagnosis of PTSD. Subsequently, in a November 2018 rating decision, the RO again increased the disability rating for PTSD from 70 percent to 100 percent, effective November 18, 2018, the date of a VA PTSD review examination. In addition, the Veteran's PTSD was found to be permanently and totally disabling, effective November 18, 2018. The Board notes that entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or at the housebound rate is not shown by the evidence of record. As the Veteran has been awarded the maximum available benefits for PTSD from November 18, 2018, the issue of entitlement to a higher rating for PTSD for the appeal period from November 18, 2018 is no longer in appellate status. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for PTSD for the period prior to November 18, 2018, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The claim has been recharacterized above to reflect the staged rating on appeal. In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to an initial rating in excess of 30 percent prior to October 9, 2015 for posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to a rating in excess of 70 percent from October 9, 2015 to November 18, 2018 for PTSD is remanded. Issues 1&2. The Veteran contends that his PTSD disability warrants a 100 percent rating effective from the beginning of the appeal period, which commenced on February 3, 2010, the date after service separation. See Hearing Transcript at 7 (September 2021). As explained below, remand is necessary to obtain relevant outstanding treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant medical records. 38 C.F.R. § 3.159 (c)(1). To ensure that VA has fully met its duty to assist, further development is necessary to obtain the outstanding treatment records the Veteran has identified. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). At the September 2021 Board hearing, the Veteran testified that all his psychiatric treatment has been through the VA system since the time he was discharged from service in 2010 and that he was prescribed many different psychotropic medications through VA. See Hearing Transcript at 6 & 15 (September 2021). He also indicated that he was twice enrolled in rehabilitation programs related to drug and alcohol use, depression, PTSD and anger issues. See Hearing Transcript at 3 &14 (September 2021). The Veteran testified that, at service separation in February 2010, he had symptoms of anger, depression, and anxiety which impacted his social and occupational functioning. See Hearing Transcript at 13-14 (September 2021). Additionally, he testified that, when he was first discharged from service, he had intermittent suicidal and homicidal ideation. See Hearing Transcript at 7 (September 2021). He further reported that, immediately following service separation, he was homeless and living in his car for several months until he obtained employment at Lockheed Martin. See Hearing Transcript at 6 (September 2021). A June 2012 VA PTSD examination reports shows a diagnosis of depression NOS. It was noted that the Veteran was living with his father and had worked at Lockheed Martin in biomedical equipment repair for 18 months until he was laid off the previous month. The Veteran was noted to have participated in counselling through VA after service discharge in 2010 and was prescribed Ambien by VA in 2011. At the time of the June 2012 VA examination, however, he was not under any mental health treatment. The Veteran's history included an arrest for disorderly conduct in April 2012 after getting intoxicated and hitting a police officer. The Board observes that VA treatment records prior to August 2012 are not of record, and, more importantly, relevant VA mental healthcare treatment records identified by the Veteran have not been associated with the claims file for the period from February 2010 to August 2012. It is noted that separate ratings may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, while the record contains VA treatment records of frequent mental health appointments for the periods from August 2012 to April 2017 and from August 2017 to March 2018, it appears there are some outstanding VA treatment records for the period from April 2017 to August 2017 and from March 2018 to November 2018. Furthermore, VA treatment records contain a discharge summary showing the Veteran was admitted to the VAMC San Antonio domiciliary residential rehabilitation treatment program in May 2015 and discharged in September 2015 for the treatment of severe cannabis use disorder. It was noted that the Veteran made good progress during the program despite his ongoing struggles with depression and that he continued to work on his anger management. In this regard, the Veteran also submitted a summary from The Domiciliary, Villa Serena, in San Antonio Texas showing he was participating in a homeless veterans' psychosocial rehabilitation and residential program. See Correspondence (August 2015). The Veteran annotated the correspondence indicating that he was undergoing substance abuse and psychosocial rehabilitation in connection with his service-related depression and was being further assessed for PTSD, mood swings, and anxiety. Id. The Board notes that there are no medical records associated with the Veteran's treatment at The Domiciliary, Villa Serena. Although the discharge summary reflects the Veteran's severe cannabis use disorder was the reason for his enrollment in the program, it also refers to symptoms of depression and anger management which are part and parcel of the Veteran's service-connected PTSD disability. Because these records are potentially relevant to the Veteran's claim for an increased rating for PTSD, the complete records of his treatment at Villa Serena must be obtained on remand. Lastly with regard to records, review of VA treatment records reveals that non-VA treatment has been scanned into VISTA. For instance, a July 2016 entry notes a non-VA document, dated in September 2015, for NVCC Services Consult, had been scanned through VISTA imaging. See CAPRI (August 2017). However, the record(s) are not viewable in the claims file and are not otherwise of record. On remand, attempts must be made to associate with the claims file all scanned treatment records regarding the Veteran. As such, a remand is required to allow VA to obtain the above records to ensure a complete record upon which to adjudicate the claim for entitlement to a higher rating for PTSD. See 38 C.F.R. § 3.159 (c); see Sullivan, 815 F.3d at 786. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the periods from February 2010 to August 2012, from April 2017 to August 2017, and from March 2018 to November 2018. Obtain all treatment records from VAMC San Antonio domiciliary residential rehabilitation at Villa Serena from May 2015 to September 2015. Associate copies of all treatment records that have been scanned into the VistA Imaging system with the Veteran's claims folder for the period from February 2010 to November 2018. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his symptoms of his psychiatric disorder, including any non-VA rehabilitation programs. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.